JUDGMENT

Hashim Yeop Sani SCJ:

Abdul Fatah bin Haji Haron, the respondent in this appeal was one of the two candidates in the Kelantan state election for the state constituency of Bukit Tuku held on 3 August 1986. He lost the election. On 1 October 1986 he filed an election petition in the Kota Bharu High Court vide Kota Bharu Election Petition No. 33-1-86 challenging the validity of the election of the other candidate, one Zakaria bin Botok. In the petition he claimed that the said Zakaria bin Botok was not duly elected or returned and that he was the one who was duly elected and ought to have been returned. The hearing of the said election petition was fixed in April 1987 but was postponed because the said Zakaria bin Botok passed away on 31 March 1987. On 2 April 1987 the secretary to the Dewan Negeri Kelantan wrote to the secretary to the Election Commission informing the Commission of the death of the said Zakaria bin Botok.

Article 113(1) of the Federal Constitution enjoins the Election Commission inter alia to conduct elections to the legislative assemblies of the states. Article XLVI(5) of the Constitution of Kelantan provides that a casual vacancy in the legislative assemb